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Holes in Russian Patent Law
November 24, 2006 16:54

Any person, who is just getting acquainted with the Russian patent legislation, may feel a bit giddy: lack of development and ambiguity of legal norms make it possible to register any discovery in one’s name from the chair to the fork and claim the fee from manufacturers. Russian patent law was almost inviolate derived from the Soviet legislation, which wasn’t influenced by global tendencies due to the total isolation. Today some of its sections sound so awkwardly that they may be patented themselves.

In Russia one is free to apply for a patent of a product having for a long time been supplied to the Russian market by western manufacturers. All the claimant has to do is to present a descriptive document of the product's trade dress and characteristic features. If the product's producers haven't bothered to register the item at the Russian Agency for Patents the claimant's application is likely to be met.

At that rate the “inventor” has all the chances to take advantage of blackmailing entrepreneurs and sellers. This judicial paradox is frequently taken hold of by businessmen, as it is, firstly, a quality weapon in the competitive struggle, secondly, an effective instrument of tax optimization. Anyway, queues to the Russian Agency for Patent and Trade Marks are only getting longer with every passing year.

 March 20, 2003 is a landmark for the national meat processing industry. That day the Russian Agency for Patent granted a patent to the director-general Musheg Mamikonyan of Lianozovsky sausage-manufacturing plant for “sausage goods”. Mamikonyan invented a sausage possessed with certain characteristic features: it must be of round shape, have protective polymeric cover and contain minced meat with spices and herbs. The last point mentioned in the document was the following: minced meat particles may be bigger or smaller than half a millimeter by size. Tertium non-datur.

Several years earlier Russia discovered a plastic spoon along with a fork, a knife, a glass, a plate and a bowl. Specifications described in the patent claim didn’t convey anything new: plastic forks and spoons were made of such original constituents as an operating body and a shank.

Jurists believe that Russian businessmen “invent’ spoons, forks and sausage not out of mere vanity and desire to restrict competitors’ opportunities to produce similar goods, but willing to optimize financial flows of the enterprise. According to the 221st section of the Internal Revenue Code, fees received by the patent holder are not included in the tax base of an enterprise therefore owners are able to get a share of profits free of tax without dealing with illicit schemes. 30% of the official income got from copyright is not taxable; the rest 70% is a subject to tax at the standard rate for sole proprietors. The size of copyright royalties is defined by the agreement between the inventor and the company using their design invention and not limited by the law.

 The Russian legislation implies two variants of patenting: granting a patent for a design invention and a useful model. The difference is that useful models must demonstrate the disclosure of new devices and design inventions present their original trade dress and aesthetic effect. These are the criteria to be followed when choosing the first or the second type of legal safeguard. Even specialists are confused at making a choice. As for unfair applicants, they purposefully place their stake on the useful model, as it is much easier to patent and there is no need to conduct an examination for novelty. Moreover, the Russian Agency for Patents frequently has no information on whether the similar invention exists somewhere in the world; experts are unlikely to bother themselves with studying it out.

However, the main distinction between the US or European laws and the Russian ones is that the latter don’t sanction taking unfair patents, that is why in Russia it is one of the best ways to compromise a competitor: a person starting and losing an action has to recompense huge expenses, but in our country impunity whips up unfair patent holders.


Olga Pletneva

Tags: Russian laws     

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